Brock v. L.E. Myers Co., High Voltage Div.
| Decision Date | 13 May 1987 |
| Docket Number | No. 86-3215,86-3215 |
| Citation | 818 F.2d 1270 |
| Parties | 13 O.S.H. Cas.(BNA) 1289, 1986-1987 O.S.H.D. ( 27,919 William E. BROCK, Secretary of Labor, Petitioner, v. The L.E. MYERS COMPANY, HIGH VOLTAGE DIVISION, and Occupational Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sandra Lord (argued), Asst. Counsel for Appellate Litigation, Office of the Sol., U.S. Dept. of Labor, Washington, D.C., for petitioner.
John M. Kunst, Jr., Cincinnati, Ohio, Gary E. Becker (argued), for respondents.
Before ENGEL and GUY, Circuit Judges, and PECK, Senior Circuit Judge.
The Secretary of Labor petitions this court for review of an order of the Occupational Safety and Health Review Commission reversing the administrative law judge's (ALJ) decision, which had upheld citations issued against L.E. Myers Company (Myers). The Secretary contends that the Commission's decision is not supported by substantial evidence and did not adequately articulate its reasons for failing to credit the findings of the ALJ. We agree and hereby reverse.
This action arises from an inspection conducted by a compliance officer of the Occupational Safety and Health Administration (OSHA) following the electrocution death of one of Myers' employees. Following the inspection, OSHA issued several citations charging Myers with both serious and non-serious violations of the Occupational Safety and Health Act of 1970 (the Act). 29 U.S.C. Sec. 651 et seq. However, the Secretary appeals only the Commission's ruling with respect to the citation for "serious" 1 violation of 29 C.F.R. Sec. 1926.28(a), and we will confine our discussion to that issue only. Section 1926.28(a) provides:
Sec. 1926.28 Personal protective equipment.
(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
The citation alleged that Myers had committed a serious violation by exposing employees working without safety belts or other fall protection to a potential fall of 75 feet.
The investigation ensued as the result of an accident in which one employee was killed and another was seriously injured at a construction project near Cincinnati operated by High Voltage Systems, a wholly-owned division of Myers which constructs and installs electrical transmission and distribution equipment. The project required Myers' employees to install rubber covering as insulation on a 13.2 kilovolt energized electrical wire in a congested construction area where Emery Industries, which had contracted with Myers to perform the insulation work, was building an addition to a boiler house. The electrical lines ran a distance of 85 feet between a terminal pole and a tower located atop the boiler house. The terminal pole was about 47 feet high, the roof of the boiler house was about 60 feet from ground level, and the top of the tower was about 80 feet from the ground.
Although the preferred method of performing this operation called for deadening the high-voltage power lines, Emery refused to do so, whereupon James Kevelder, Myers' district manager for the Cincinnati area, consulted with Robert Sayre, a Myers' foreman, about alternate methods for performing the job. It was finally decided to attempt the job from the roof of the boiler house building by standing a ladder on the roof against the electrical tower supporting the high-voltage wires and having a man mount the ladder and slide the rubber hose down onto the wires. No mention was made of the use of any specific protective equipment during this discussion.
The foreman, Sayre, contacted James Carmac, a journeyman lineman, and Russell Miller, an apprentice lineman, to perform the job. James Carmac testified before the ALJ that he had asked Sayre if they needed to bring any tools or belts with them, and Sayre said, The work commenced when Sayre, wearing no protective equipment other than rubber gloves, mounted the 28 foot extension ladder on the east side of the tower, and covered most of the energized areas with rubber blankets. He then took the rubber hose which was handed up to him by Carmac, who was standing on a lower rung of the ladder, and began to slip it over the wires. This procedure involved laying a section of hose over the top channel of the tower structure, reaching under the channel and over a diagonal brace, and feeding the interlocking hose onto the line. As the weight of the hose increased, Sayre decided to balance the load by installing hose onto the opposite side. He accordingly dismounted and the ladder was moved. Although it appears that the ladder may have been "tied-off" while Sayre worked from it, Carmac testified that when it was moved, the rope was slack and it no longer appeared to be secured.
At that point, Miller mounted the ladder to continue the procedure from the west side of the tower as Sayre had previously been doing. Although Miller was wearing both rubber gloves as well as sleeves, 2 none of the three men were wearing a safety belt or any other fall protection equipment. A bystander, the manager of another electrical construction firm working at the Emery site, testified at the hearing that observing Miller carrying out this procedure was "like watching a guy struggling on a tight rope, and we at that point were debating whether we should holler at the guy and tell him to get off the thing." Shortly after he began performing the work, Miller, without explanation or warning, fell forward and struck an uncovered energized "pothead" or terminus for the power lines. He was instantly electrocuted, and continued falling until he struck the ground some 85 feet below. Carmac, standing on a lower ladder rung, fell backward onto the roof, suffering broken ribs and other injuries. Sayre, who had been observing from a corner of the roof, was unharmed.
Following investigation of the accident, Myers determined that Sayre was subject to discipline for failing to require the use of any fall protection equipment, such as safety belts and lanyards. Use of such equipment on the Emery project was mandated by Myers own written safety booklet which is distributed to all supervisory personnel. Sayre was placed on a two-week suspension without pay, from which he never returned. 3
Myers contested the citation for violation of 29 C.F.R. Sec. 1926.28(a) on the ground that the violation was not chargeable to the company because it had a safety rule requiring the use of safety belts while working at elevated locations and, therefore, the failure to use belts in this instance was unforseeable employee misconduct.
The evidence adduced at the hearing revealed a safety program at Myers which looked good on paper but was routinely disregarded in practice in the Cincinnati district. The formal safety program consisted of: (1) distribution of safety manuals to employees and supervisors, who were required to sign and return a receipt for the manuals; (2) regular safety "tailgate" meetings which were to be conducted by foremen at the worksite; (3) the filing of reports on such meetings with the district manager (here Kevelder); (4) individual pre-job discussions of safety matters; (5) worksite visits by a Myers Safety Supervisor, headquartered in Chicago, whose territory covered the eastern third of the country; and (6) a progressive system of discipline for safety infractions, normally implemented by the district manager. Myers could produce no records showing receipt by either Carmac or Miller of their basic safety booklets nor for the manuals required for supervisory personnel, such as Sayre and Kevelder. No records were produced of any tailgate meetings conducted by Sayre, and Carmac reported that he could not remember when a safety meeting had last been held. Kevelder's secretary, Nancy Maher, testified that, prior to the accident, Sayre had not filed any safety reports. Following Miller's death, Kenneth Kesmeyer, HVS's manager out of Toledo, demanded copies of Cincinnati's safety reports. Maher testified that Sayre repaired to a backroom with some pens, a calendar, and a copy of Myers "Tailgate Safety Meeting Guides" and prepared several reports at once.
Kevelder testified that, as district manager, he did not get "actively involved" in the safety program and that it was very seldom necessary to have safety meetings unless something was "really out of the ordinary," although the company's Safety Supervisor, Robert Grandt, testified that it was the district managers who were responsible for training and enforcement of safety matters within their districts. Kevelder further admitted that there had been no specific discussion of safety matters prior to the Emery job at issue, mainly because it would be "insulting [Sayre's] intelligence" to remind him to take normal safety precautions. However, as Carmac's testimony revealed, Sayre specifically stated that no safety belts would be needed on the job and, indeed, he himself did not have his belt on nor did he tie-off while on the ladder as protection against a potential fall. Finally, OSHA's compliance officer testified that
The ALJ concluded that Myers He credited...
To continue reading
Request your trial
-
Carlisle Area School v. Scott P. By and Through Bess P.
...accord great deference to those findings of original decision maker that turned on credibility judgments); Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270 (6th Cir.1987) (requiring Occupational Safety and Health Review Commission to articulate reasons for failing to credit finding......
-
New York State Elec. & Gas Corp. v. Secretary of Labor
... ... Were Webb not a supervisor, but simply Price's co-worker, then supervision was inadequate because ... See Carlyle Compressor Co., Div. of Carrier Corp. v. OSHRC, 683 F.2d 673, 676 (2d ... See Pride, 15 O.S.H. Cas. at 1814; Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th ... ...
-
Baker v. Commonwealth, No. 2005-CA-001588-MR (Ky. App. 10/19/2007)
...applies when the administrative agency rejects the findings" of the hearing officer; emphasis supplied); see also, Brock v. L.E.Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987)(administrative agency must explain grounds for rejection of hearing officer's Baker advances the argument that the B......
-
LABOR COMMISSIONER v. Cole Roofing Co.
...638 F.2d 812 (5th Cir.1981); CMC Elec. v. Occupational Safety and Health Admin., 221 F.3d 861 (6th Cir.2000); Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270 (6th Cir.),cert. denied, 484 U.S. 989, 108 S.Ct. 479, 98 L.Ed.2d 509 (1987); DCS San. v. Occupational Saf. and Health Com'n......
-
Employment-related crimes.
...after the Secretary had made out a prima facie case of a violation of the act); see also Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.), cert. denied, 484 U.S. 989, 108 S. Ct. 479, 98 L.Ed.2d 509 (1987) (same); Daniel Int'l Corp. v. OSHRC, 683 F.2d 361, 364 (11th......
-
Employment-related crimes.
...the employer after the Secretary had made out a primafacie case of a violation of the act); Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.) (same); Daniel Int'l Corp. v. OSHRC, 683 F.2d 361,364 (11th Cir. 1982) (same); H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 818 (......
-
Employment-related crimes.
...the employer after the Secretary had made out a prima facie case of a violation of the Act); Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270, 1276 (6th Cir.) (same); Daniel Int'l Corp. v. OSHRC, 683 F.2d 361, 364 (11th Cir. 1982) (same); H.B. Zachry Co. v. OSHRC, 638 F.2d 812, 818......
-
Chapter 31
...923 F.2d 1011 (3d Cir. 1991): 13.2(2) Boston Shipyard Corp., In re, 886 F.2d 451 (1st Cir. 1989): 11.3(3) Brock v. L.E. Myers Co., 818 F.2d 1270 (6th Cir.), cert, denied, 484 U.S. 989 (1987): 23.3(3)(a) Bus. & Residents Alliance of E. Harlem v. Jackson, 430 F.3d 584 (2d Cir. 2005): 13.2(2) ......